Constitution

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As constitution the central is the right document or one of the central legal inventory state , constituent state or association of states (see. Treaty establishing a Constitution for Europe refers). It regulates the basic organizational structure of the state, the territorial structure of the state, the relationship with its constituent states and with other states, as well as the relationship with those subject to the norms and their most important rights and obligations . The state powers constituted in this way are bound by the constitution as the supreme norm and their power over the norm is limited. In democratic states, the constitution-making power emanates from the people of the state . Constitutions usually contain Staatsaufgaben- and state objective rules, these are often found in a preamble again.

The legal dispute with constitutions is the subject of constitutional law .

General

Since all legal clauses of a legal system are derived from the constitution as the basic order , this forms the conclusion of the gradual structure of the legal system . In order to justify this termination of the infinite legal derivation recourse, legal positivism developed the concept of the basic norm . In principle, the question of their legitimacy always arises with constitutions . Constitutional laws usually differ from simple legal provisions in several ways:

According to Hauke ​​Möller, constitutions have a double function. “On the one hand, they organize the pouvoir constitué and determine how state decision-making takes place. On the other hand, they contain regulations such as the fundamental rights to which the pouvoir constitué is generally bound. "

First or completely new constitutions are often drawn up by constituent assemblies . In democratic states, constitutional power comes from the people, and even in today's monarchies - at least predominantly in Europe - the monarch is no longer the only sovereign . In the reality of representative democracies, this is usually delegated to a constitutional legislature. However, some states also provide for mandatory referendums for partial or total revisions of the constitution, for example for total changes to the constitution in Austria . In the case of changes to the constitution by the national constitutional legislature, certain qualified majorities are usually required. As in Austria ( Art. 44 Para. 1 and 2 B-VG ), a two-thirds majority is usually required.

However, constitutions do not have to consist of a single constitutional document or even of written law at all ; However, because of its function, the latter has priority over unwritten constitutional law. In the United Kingdom , for example, the constitution consists of a number of historically evolved legal texts that emphasize the non-static character of the British constitution.

The investigation of different current or historical constitutions is called constitutional comparison . It is a sub-case of comparative law .

Terms

In legal dogmatic terms, what is commonly understood today as a “constitution” is a constitution in the formal sense , that is, a constitution in legal form. In contrast, the term constitution in the material sense simply describes all those legal norms that regulate the structure and activities of the community , regardless of whether they are positively defined in legal form (for example, when the elders of a tribe pass a resolution). A constitution in the material sense thus exists in every - even if “primitive” - form of human coexistence. A constitution in the formal sense, on the other hand, is a civilizational achievement to determine fundamental rights and obligations with legal certainty .

Constitutional history

If constitutions are seen as the basis for the legality of state power , which does not necessarily have to be republican , the decree of King Telipinu , who fundamentally regulated the succession to the throne for the kingdom of the Hittites around 1505 BC , can be seen as a milestone. Not only was it standardized that the king had to bow to the law, but also a council chamber, the so-called pankus, was manifested as a constitutional organ .

In the year 594 BC, initiated by Solon , the Attic democracy began , which in 508 BC. Was then improved by Kleisthenes to the extent that it was until 262 BC. Chr. Had existed. This constitution of Athens had not only established the powerful people's assembly and a council of 500 as permanent constitutional organs, but also contained further regulations on the composition of the courts and the exercise of executive power. This was exercised in a rotation procedure, but there was also the filling of political offices through elections, and to a large extent, filling by lottery.

In 293 Diocletian passed a constitution for the Roman Empire ( tetrarchy ), which established a rule of four at the head of the state and stipulated regulations regarding the maximum period of reign and succession.

The Italian peninsula then remained in charge of constitutional history for a long time and, with the constitution of the Republic of Venice, formed one of the most structured constitutions for many centuries. But even the standing under completely different objectives Papal States was an elective monarchy in the non predecessor appointed the successor, but a meeting of senior dignitaries, the conclave .

The constitution in the Kingdom of England took a completely different development . It was there that today's image of constitutions was shaped early on, on the one hand the establishment of state institutions with the separation of powers later standardized by Montesquieu and the personal, documented freedom rights (basic rights) of the residents of the state, who thus became citizens in a lengthy process . Initially fought for primarily by and for the nobles (barons), the double-sided character of the Constitutio reached the lowest level of the population hierarchy.

At the end of the 18th century, the two most formative events for the constitutional reality of modern times occurred. The thirteen English colonies on the east coast of North America declared their independence in 1776 and created a constitution in 1787 that influenced many Western drafts. In 1792, also under the influence of the events in America, one of the most powerful and oldest kingdoms in the world changed into a republic: On August 10, 1792, Louis XVI lost . his throne and France became a de facto republic. With a subsequent election of parliament, the republic was also de jure confirmed on September 21, 1792.

Constitutional jurisdiction

The constitutional jurisdiction based on the idea of staging a constitutional disputes before a Constitutional Court , which is empowered to make a decision about the content or the interpretation of the Constitution. The concept of constitutional jurisdiction comes from the Anglo-American legal area . Modern constitutional jurisdiction goes back above all to the Austrian Constitutional Court , which was largely designed by Hans Kelsen . This was the first judicial review body authorized by the constitution to secure the constitutional guarantee. However, such a constitutional court does not exist everywhere:

  • In the Iranian constitution, for example, the so-called Guardian Council has the review authority of a constitutional court with final authority in all decisions. He makes his decisions according to the Imamitic form of Sharia law .
  • The Switzerland only has a limited constitutional jurisdiction because the people are accorded the highest sovereignty. Federal laws are therefore to be applied by the authorities and courts even if they are unconstitutional. Cantonal decrees of any kind as well as decrees at federal level that do not have legal status can, however, be challenged before the federal court.

Constitutional preambles

Constitutions are usually preceded by a preamble , in which a declaration is made about the motives of the constitutional legislature or a higher power over the state is invoked or used for legitimation.

Current constitutions

European Union

With the Treaty establishing a Constitution for Europe , the European Union (EU) was to have its own constitution for the first time. However, since the referendums scheduled for this purpose in France and the Netherlands failed, the constitutional treaty was declared a failure.

Instead, the European Council decided in 2007 to incorporate the envisaged measures and changes brought about by the Lisbon Treaty into the existing treaties. The use of the word “constitution” and symbols typical of the state such as the flag and anthem were not used. Nevertheless, the European primary law - above all the EU Treaty , the AEU Treaty and the EU Charter of Fundamental Rights - has the same legal status as the Constitutional Treaty would have had; it is therefore of constitutional quality. Likewise, there is “largely agreement [...] that, based on a substantially enriched constitutional term, there are deficits”.

Germany

Constitutional history

As early as 1849, the Frankfurt National Assembly submitted a draft constitution for all of Germany. Although this draft was not accepted by the Prussian king and other princes, it had an impact on later discussions. A supra-regional German constitution came into force for the first time in 1867, namely the constitution for the North German Confederation . The design was created under the leadership of Otto von Bismarck and was accepted by the individual northern German states. But then the constituent Reichstag, which had been elected specifically for this purpose, discussed it. The resulting constitution was therefore not an imposed one (only imposed by monarchs), but an agreed one. With minor changes, it became the constitution of the German Empire in 1870/1871 .

The Weimar Constitution of August 11, 1919 replaced that constitution and established for the first time the form of the republic for the entire German state. Like the Frankfurt draft, it also received a catalog of fundamental rights , while the regulation of fundamental rights had previously been left to the individual states. The Germans were now allowed to elect the head of state in addition to the Reichstag and to have a say in politics. The science of history is in disagreement as to whether and to what extent the Constitution of the Republic of complicity had the downfall 1933. Officially was never abolished the Weimar Constitution, but by the Nazi legislation and constitutional reality eroded.

After the Second World War, the Basic Law for the Federal Republic of Germany came into force on May 23, 1949. The constitution-maker was the Parliamentary Council in Bonn , to which the West German state parliaments had elected 65 members. Parts of the Weimar Constitution of 1919 were incorporated into the Basic Law. The draft required the approval of the Western occupying powers . Since 1990 the Basic Law has been the constitution for the whole of Germany (cf. Joint Constitutional Commission ).

Since the individual German states have their own state character and are therefore member states (characteristics: state people , state authority and state territory ), each state has its own individual (state) constitution. However, according to the principle of homogeneity , this constitution must correspond to the “principles of the republican, democratic and social constitutional state within the meaning of this Basic Law” ( Article 28.1 sentence 1 GG). Fundamental principles such as human dignity , the rule of law or changes to the Basic Law itself relating to the principle of federalism are limited by the eternity clause ( Article 79.3 of the Basic Law).

Constitutions of the German states

Austria

General

The Austrian Federal Constitution does not represent a uniform constitutional document, but is shaped by the idea of ​​a “formal constitutional plurality”. The most important federal constitutional laws are:

In addition, there are numerous other laws or parts of laws with constitutional status ( constitutional laws in the general sense).

Constitutions of the Austrian federal states

Switzerland

Constitutions of the Swiss cantons

Article 51 (1) of the Federal Constitution of the Swiss Confederation stipulates that “every canton [...] has a democratic constitution. This requires the consent of the people and it must be possible to revise it if the majority of those entitled to vote so request. "

For the individual constitutions, see the respective canton articles, as well as canton government and canton parliament .

Municipal constitutions

In Switzerland, communal autonomy is traditionally high (greatest in the cantons of Eastern Switzerland ). The respective communal organizational decrees are called the communal regulations, in the cantons of Schaffhausen and Graubünden the communal constitution . The term “community order” means something different in Switzerland than in Germany, where it refers to the state law in which the community system is regulated (see municipal code in Germany ).

Liechtenstein

Belgium

Grand Duchy of Luxembourg

Non-German speaking member states of the European Union

Other constitutions

Historical constitutions

Bavaria

to bathe

Hesse

Prussia

German Confederation

German Empire

GDR

Austria

Swiss Confederation

Other historical constitutions

Non-governmental constitutions

Documents with constitutional character know many world religions; they are consistently older than the constitutions of modern states. One example is the codification of Mosaic law under Ezra around the middle of the 5th century BC.

Under the catchphrase corporate government , companies are also adopting a constitution, primarily to create greater transparency for their owners and employees.

See also

literature

Constitutional history

  • Ernst Rudolf Huber (ed.): Documents on German constitutional history. 5 vols., Stuttgart / Berlin / Cologne 1978–1997.

Constitutional texts

Secondary literature

  • Monica Claes: Constitutional law . In: Jan M. Smits (Ed.): Elgar Encyclopedia of Comparative Law . Edward Elgar, Cheltenham / Northampton, MA 2006, ISBN 978-1-84542-013-0 , pp. 187-199 .
  • Peter Häberle : Constitution as a public process. 3rd edition, Duncker & Humblot, Berlin 1998, ISBN 3-428-08491-8 .
  • Peter Häberle: Constitutional Studies as Cultural Studies. 2nd edition, Duncker & Humblot, Berlin 1998, ISBN 3-428-09202-3 .
  • Peter Häberle: European constitutional theory. 7th edition, Nomos, Baden-Baden 2011, ISBN 978-3-8329-6218-0 .
  • Bernd Wieser: Comparative constitutional law. Springer, Vienna 2005, ISBN 3-211-27753-6 .
  • Robert Chr. Van Ooyen: Politics and Constitution. VS Verlag, Wiesbaden 2006.
  • Kenneth Robert Redden : Modern Legal Systems Cyclopedia . Buffalo, New York, ISBN 0-89941-300-5 .
  • Gerhard Robbers (Ed.): Encyclopedia of World Constitutions . 3 vols., Facts on File Publ., New York 2006 (English).
  • Mark Tushnet: Comparative Constitutional Law . In: Mathias Reimann and Reinhard Zimmermann (eds.): Oxford Handbook of Comparative Law . Oxford University Press, Oxford 2008, ISBN 978-0-19-953545-3 , pp. 1225-1258 .

Magazines

Web links

Wiktionary: Constitution  - explanations of meanings, word origins, synonyms, translations
Wikiquote: Constitution  - Quotes
Wikisource: Constitutional Documents  - Sources and Full Texts

Individual evidence

  1. ↑ Hauke ​​Möller: The constituent power of the people and the barriers to constitutional revision: An investigation into Article 79, Paragraph 3 of the Basic Law and the constitutional power according to the Basic Law. 1st edition 2004, ISBN 3-89825-848-3 , p. 31 ( PDF; 831 kB ).
  2. ↑ Michael Anderheiden : Common Good in Republic and Union (=  Jus Publicum , vol. 152), Mohr Siebeck, Tübingen 2006, p. 594 f.
  3. ↑ See Heinrich Amadeus Wolff , Unwritten Constitutional Law under the Basic Law (Jus Publicum, Vol. 44), Mohr Siebeck, Tübingen 2000, p. 359 .
  4. ↑ See BVerfG , decision of April 17, 1953, BVerfGE 2, 336 (339 ff.); BVerfG, decision of July 11, 1967, BVerfGE 22, 145 (176); BVerfG, decision of December 20, 1979, BVerfGE 53, 30 (53); Erhard Denninger , Judicial Review Revisited: The German Experience , Tulane L. Rev., Vol. 59 (1985), pp. 1013 ff., 1025; Markus Kennner , From “Guardian of the Constitution” to “Breakdown Help of the Nation”? - Concerning the control density in the procedure of the constitutional complaint , DÖV 2005, issue 7, p. 269 ff., 270.
  5. ↑ . Zit n. Martin Nettesheim : The konsoziative Federation of EU and Member States , Section III # 6.. , First published in: ZEuS, Volume 5, Issue 4/2002.
  6. ^ Roman Herzog : Reinventing Europe. From super-state to citizen democracy , Siedler, Munich 2014, p. 38 f.
  7. ^ So Herbert Schambeck , The Constitutional Concept and Its Development , in: Festschrift for Hans Kelsen for his 90th birthday , ed. by Adolf J. Merkl, René Marcic, Alfred Verdroß, Robert Walter, Vienna 1971, pp. 211–241, here p. 225.
  8. ^ In addition: Republic of Austria , Parliament: The Federal Constitutional Law , website of the Parliamentary Administration on the Federal Constitution. Retrieved February 5, 2015.
  9. ^ Constitutional text (Austrian Federal Chancellery)
  10. ↑ For the Swiss cantonal constitutions see admin.ch .